United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS, SENIOR UNITED STATES DISTRICT JUDGE
the Court in this anti-piracy lawsuit is Plaintiff Joe Hand
Promotions, Inc.'s (“Joe Hand”) Motion for
Summary Judgment and Supporting Brief (“Motion for
Summary Judgment” or “Motion”) [Doc. # 34]
seeking judgment against Defendants Mohd Azeem Nasir Mahmood,
Muhammad Alam Millu, and Nasir Mahmood (collectively, the
“Individual Defendants”). The Individual
Defendants have not filed a response, and their time to do so
has expired. The Motion is ripe for decision. Based on
Joe Hand's briefing, relevant matters of record, and
pertinent legal authority, the Court grants
Joe Hand's Motion for Summary Judgment.
Joe Hand initiated this lawsuit on May 30, 2018, against
Defendant SNP Hookah Lounge and Grill LLC (“SNP
Hookah”) and the Individual Defendants. Joe Hand alleges
that all Defendants engaged in the unauthorized and illegal
interception and/or receipt and exhibition of the
Ultimate Fighting Championship® 205: Alvarez
vs. McGregor broadcast on November 12, 2016 (the
“Event”) at their establishment known as SNP
Hookah Lounge in Houston, Texas (the
“Establishment”). Joe Hand asserts claims for
satellite and cable piracy under the Federal Communication
Act, 47 U.S.C. §§ 553 and 605.
February 6, 2019, Joe Hand served the Individual Defendants
with Requests for Admission. To date, Defendants have not
responded to the Requests.
February 21, 2019, the Court entered a Default Judgment [Doc.
# 30] in favor of Joe Hand against SNP Hookah for its
violation of 47 U.S.C. § 605. The Court awarded
statutory damages under § 605(e)(3)(C)(i)(II) in the
amount of $5, 000 and additional damages under §
605(e)(3)(C)(ii) in the amount of $20, 000, plus interest,
costs, and reasonable attorney fees.
Hand seeks the entry of summary judgment that all Defendants
are jointly and severally liable for: $5, 000 in statutory
damages under § 605(e)(3)(C)(i)(II); $20, 000 in
additional damages under § 605(e)(3)(C)(ii); $1, 075.00
in costs; attorney fees; and post-judgment interest.
Federal Rule of Civil Procedure 56, “[a] party may move
for summary judgment, identifying each claim or defense-or
the part of each claim or defense-on which summary judgment
is sought.” Fed.R.Civ.P. 56(a). Summary judgment on a
claim or part of a claim is appropriate “if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Seacor Holdings, Inc. v. Commonwealth Ins.
Co., 635 F.3d 675, 680 (5th Cir. 2011) (quoting
as here, the movant would bear the burden of proof at trial,
the movant “must establish beyond peradventure
all of the essential elements of the claim or
defense to warrant judgment in [its] favor.” See
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.
1986) (first alteration in original). As a party asserting
that certain facts cannot be genuinely disputed, Joe Hand
“has the initial responsibility of informing the court
of the basis for its motion and identifying those portions of
the pleadings and materials in the record, if any, which it
believes demonstrate the absence of a genuine [dispute] of
material fact.” See Deutsche Bank Nat'l Tr. Co.
v. Cardona, No. 7:16-CV-448, 2017 WL 2999272, at *1
(S.D. Tex. Apr. 20, 2017). See also Fed. R. Civ. P.
56(c)(1). Once the movant meets its burden, “[t]he
burden then shifts to ‘the nonmoving party to go beyond
the pleadings and by her own affidavits [and other competent
evidence] designate specific facts showing that there is a
genuine issue for trial.'” Davis v. Fort Bend
County, 765 F.3d 480, 484 (5th Cir. 2014) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
deciding whether a genuine and material fact issue has been
created, the court reviews the facts and inferences to be
drawn from them in the light most favorable to the nonmoving
party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A
genuine issue of material fact exists when the evidence is
such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th
Cir. 2009) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
Anti-Piracy Under 47 U.S.C. § 605
605 states that “[n]o person not being authorized by
the sender shall intercept any radio communication and
divulge or publish the existence, contents, substance,
purport, effect, or meaning of such intercepted communication
to any person.” 47 U.S.C. § 605(a). “Section
605 is a strict liability statute.” Innovative
Sports Mgmt., Inc. v. Martinez, No. 4:15-CV-01460, 2017
WL 6508184, at *3 (S.D. Tex. Dec. 19, 2017) (citing Joe
Hand Promotions, Inc. v. 152 Bronx, L.P., 11 F.Supp.3d
747, 753 (S.D. Tex. 2014)). To establish liability, Joe Hand
must show that (1) the Event was exhibited in SNP Hookah
Lounge and (2) Joe Hand did not authorize the particular
exhibition of the Event. See id.; Joe Hand
Promotions, 11 F.Supp.3d at 753; J & J Sports
Prods., Inc. v. Casita Guanajuato, Inc., No.
A-13-CA-824-SS, 2014 WL 1092177, at *1 (W.D. Tex. Mar. 19,
aggrieved by violations of § 605 are authorized to bring
civil suits to enforce its provisions. See 47 U.S.C.
§ 605(e)(3)(A). A successful § 605 claimant may be
awarded injunctive relief, damages, and “the recovery
of full costs, including . . . attorneys' fees.”
See Id. § 605(e)(3)(B). The prevailing party
may elect to recover their actual damages or statutory
damages. See id. § 605(e)(3)(C)(i). If the
prevailing party elects to receive statutory damages, the
court may award damages between $1, 000 and $10, 000 for each
violation. See Id. § 605(e)(3)(C)(i)(I)-(II).
The Court also has discretion to award additional damages up
to $100, 00 for violations “committed willfully and for
purposes of direct or indirect commercial advantage or
private financial gain.” See Id. §
Hand seeks summary judgment that all Defendants are jointly
and severally liable under 47 U.S.C. § 605 for pirating
Joe Hand's broadcast. Defendants have not responded to
Joe Hand's Motion for Summary Judgment and the Individual
Defendants have not responded to Joe Hand's Requests for
non-movant's failure to respond does not permit a federal
court to grant a “default” summary judgment.
See Innovative Sports Mgmt., 2017 WL 6508184, at *4
(“[A] federal court may not grant a ‘default'
summary judgment where no response has been filed.”
(quoting Bradley v. Chevron U.S.A., Inc., No. Civ.
A. 204CV092J, 2004 WL 2847463, at *1 (N.D. Tex. Dec. 10,
2004)); Brown v. Bank of Am., No. 3:13-CV-2666-D,
2014 WL 12531162, at *1 (N.D. Tex. Jan. 14, 2014)
(“Plaintiffs' failure to respond does not, of
course, permit the court to enter a ‘default'
summary judgment.”). “Nevertheless, if no
response to the motion for summary judgment has been filed,
the court may find as undisputed the statement of facts in
the motion for summary judgment.” Innovative Sports
Mgmt., 2017 WL 6508184, at *4. See Fed. R. Civ.
P. 56(e)(2) (“If a party . . . fails to properly
address another party's assertion of fact as required by
Rule 56(c), the court may . . . consider the fact undisputed
for purposes of the ...